Shariah or traditional Islamic law forms the basis of the Saudi legal system. Shariah is derived from the Holy Quran and the Sunna (words and deeds) of the Prophet Muhammad, as interpreted by influential scholars of Islamic jurisprudence. Shariah consists of precepts that are often expressed as general principles. There are four main schools of Islamic law that interpret such precepts: Hanbali, Hanafi, Shafai, and Maliki. The Hanbali school of Islamic jurisprudence is the most influential in Saudi Arabia. Within the Hanbali school there are majority and minority views on various issues, any of which may be applied in any particular case. In addition, we are aware of certain instances in which precepts of other schools of Islamic jurisprudence have been applied by the courts where the application was deemed by the courts to be appropriate in the interests of justice and fairness with respect to the particular matter in question. Moreover, the relevant views may be expressed in general terms, which may leave a court or other adjudicatory body like an arbitral panel with a good deal of discretion as to how to apply them to specific circumstances. Shariah is largely an adaptable system of law, as evidenced by the fact that it has covered transactions from ancient times through the present.
The Saudi government supplements Shariah through issuing statutes, regulations, decrees and circulars and adopting policy positions, all of which can be and frequently are changed from time to time to adapt to changed circumstances or to take into account other considerations. In the event of a conflict between Islamic law and government rules and regulations, Islamic law will generally prevail. Where government rules and regulations are silent, reference should be made to the relevant rules under Islamic law.
Examples of these enactments include the Companies Law, the Foreign Investment Law, the Capital Market Law and the Labor Law, to name only a few examples. However, there is no civil or commercial code or other comprehensive statement of basic contractual principles. These matters are left to Shariah. Statutory enactments are subject to interpretation by the courts and by regulatory agencies based on Shariah and sometimes based on internal circulars and policy statements that are not made available to the public.
The above factors make for a fairly flexible system; however, it is important to keep in mind that such flexibility, combined with the absence of any established system of legal precedent and the great degree of discretion government officials can exercise in construing and applying regulations, often makes it difficult to apply clearly established rules to a particular situation or to predict an outcome with the degree of certainty that one might expect under other legal systems.- The Basic Law of Governance, as promulgated by Royal Decree No. A/90 dated 27/08/1412H (corresponding to 1 March 1992G) ("Basic Law")
- The Law of Protection From Abuse, as promulgated by Royal Decree No. M/52, dated 15/11/1434H (corresponding to 21 September 2013G)
The court system consists of two main branches: Shariah courts and the Board of Grievances. Several special adjudicative committees that have been established by ministerial or royal decrees complement these branches.
General (Shariah) courts are the courts of general jurisdiction and they deal predominately with criminal, civil and family matters. Depending on the facts, criminal courts would have jurisdiction over domestic violence cases. Shariah courts consider disputes in accordance with Islamic law and, within the different schools of Islamic jurisprudence, they generally follow the Hanbali school.
Generally, Shariah courts can be divided into four categories: (i) courts having jurisdiction in civil cases involving small claims where the amount in dispute does not exceed SAR 8,000; (ii) courts of first instance presided over by one judge having jurisdiction over all civil and criminal cases; (iii) appellate courts consisting of three judges, which hear appeals from judgments given by courts of first instance; and (iv) the Supreme Judicial Council, which hears petitions from appellate court judgments, but only on legal rather than factual grounds. The Supreme Judicial Council only reviews cases on legal grounds if one of the two parties rejects the decision of the appeal court. Facts regarding the case are not discussed by the council. The council has two committees: (i) a permanent committee that has jurisdiction to review all capital punishments and issues referred by the king or the Ministry of Justice; and (ii) a general committee that has jurisdiction to review appellate judgments that constitute a deviation from long established rulings. The council also has supervisory powers over the judiciary and acts as a disciplinary board on actions brought against judges.